Kokomo Tribune; Kokomo, Indiana

June 26, 2013

Zoning board to hear wind request

Tipton Co. developer seeks to change conditions of permit.

By Ken de la Bastide Kokomo Tribune
Kokomo Tribune

---- — TIPTON – The Tipton County Board of Zoning Appeals has agreed to hear a request from developer juwi Wind to modify conditions on a permit for the proposed Prairie Breeze Wind Farm.

Steve Edson, director of the Tipton County Planning Commission, said the county attorney has determined the BZA is legally allowed to hear the modification request affecting the proposed development in Jefferson and Liberty townships.

In March, the Tipton County BZA approved a conditional use permit for the Prairie Breeze Wind Farm with conditions that included a 1,500-foot setback from the property line of non-participating property owners and a property value guarantee.

Juwi Wind on May 23 sought to modify the setback requirement and submitted a property value guarantee plan to the BZA.

The company wants to change the setback to 1,400 feet from a residence and 750 feet from the property line of non-participating properties and 1,250 feet from the residence of participating property owners.

The company submitted a property value guarantee that will cover residential property within three-quarters of a mile of a wind turbine and involve only the first sale after Prairie Breeze goes into operation.

Part of the submitted plan puts the property value at between 100 and 115 percent of what the property appraises for, and juwi Wind can make an offer to purchase the property. The plan only goes into effect if there is more than 10 percent difference in the sale price and the property’s appraisal value.

Juwi Wind’s liability would be capped at $1 million for the property value guarantee.

Edson said the three alternates and two BZA members who granted the conditional use permit for the project will consider the requested modifications. The three alternates were Carroll Cohee, Neil Planalp and Robert Powell. Regular BZA members included Jerry Acres and Frank Zickmund.

No date has been set for the BZA to consider the requested modifications.

Pat Hess, the attorney for the Tipton County Citizens for Responsible Development (CRD), said he wasn’t surprised by the opinion of John Brooke, the Tipton County attorney.

“I felt that was the direction the county was leaning,” he said. “They would rather conduct the hearing and then be proven wrong in court.”

Earlier Hess indicated the CRD might seek a court injunction to block the BZA from hearing the requested modifications.

“At the very least the CRD will object at the hearing, questioning if the BZA has the authority to consider the requested modifications,” he said. “I don’t believe they have the authority.”

In a letter to Brooke in May, Hess indicated he believed juwi Wind missed the deadline to request the modifications and needed to file an appeal in court.

Mary Solada, juwi’s attorney, said in a letter to Brooke the BZA is the proper forum to review the company’s request to modify the conditions because it is not seeking to appeal the approval of the conditional use permit.

She wrote state law requires juwi to exhaust all administrative remedies prior to seeking a judicial review.

“If juwi did not pursue this administrative remedy, juwi would not be entitled to seek judicial review,” she said.

Solada said the BZA review of the requested modifications is the most efficient way to determine whether the project can move forward.